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• One solution that has been posed is to forgive depletions currently <br />accruing from past pumping. If all depletions from prior pumping are <br />forgiven (or if some phased in approach is utilized) then this would allow <br />the farmers to gradually reestablish some economical level of production <br />or a phased period towards retirement. <br />• Many plans, including all of them decreed since 2002 (except for CWAS) <br />utilized 1974 as the beginning date for computations of post-pumping <br />depletions. This is consistent with 37-92-308(3)(c)(III). Existing statute <br />could be changed to apply to all 308(4) plans. If any change is adopted, it <br />must be applicable to all existing and future plans equally. <br />The estimated amount of post-pumping depletions caused by pumping of <br />wells prior to 1974 is approximately ? acre-feet/yr or approximately ?% of <br />the estimated depletions accruing to the South Platte River from all <br />nonexempt wells. Some would argue that these depletions are currently <br />being offset anyway due to the existence of returns flows from <br />urbanization, Denver Basin wells and transmountain diversions. These <br />types of return flows arguably represent a"windfall" to the river, but this <br />windfall is gradually disappearing as cities and other users find ways to <br />reuse this water. <br />• Others would maintain that any "extra" water in the river must be allocated <br />based on priority and not be used solely to benefit wells. <br />• Any forgiveness of past-pumping "debt" would in essence enact a <br />"grandfathering in" of the wells into the prior appropriation system, which is <br />possibly what the legislature may have envisioned in 1969. <br />• On the other hand, where does the forgiveness stop? Significantly, any <br />forgiveness of depletions from past-pumping will lead to requests for <br />similar treatment from wells that are already replacing similar depletions <br />under decreed augmentation plans. Any special treatment of particular <br />groups of wells could raise due process and equal protection concerns. <br />• Similar legislation was enacted in 1989 (SB 89-120; 37-90-137(11)), <br />however, that allowed depletions from ground water exposure in gravel <br />pits prior to 1981 to be "grandfathered." The statute relieved the pit owners <br />of the obligation to replace water lost to evaporation if the water surFace <br />was exposed prior to 1981, despite the fact that the evaporative depletion <br />is continuing. This statute was subsequently appealed to the Supreme <br />Court and upheld as being constitutional. This idea is similar to the idea of <br />forgiving depletions from past pumping. A potential solution would thus be <br />to "grandfather" in the well depletions from pumping prior to a certain date. <br />As with all proposed legislation, the Attorney General's Office should <br />assess the constitutionality of such proposals including any takings issues.